Sullivan v. City of Worcester

• Decision Date: 08 February 1919
• Parties: SULLIVAN v. CITY OF WORCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

232 Mass. 111

121 N.E. 788

SULLIVAN

v.CITY OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

Feb. 8, 1919.

Exceptions from Superior Court, Worcester County; Jabez Fox, Judge.

Action of tort for personal injuries sustained on a street by Margaret Sullivan against the City of Worcester. Verdict for plaintiff, and defendant excepts. Exceptions ordered overruled.

Frank F. Dresser and Chas. F. Garrity, both of Worcester, for plaintiff.

John W. Mawbey, City Sol., and Frank L. Riley, Asst. City Sol., both of Worcester, for defendant.

BRALEY, J.

The plaintiff, a pedestrian, while passing over a sidewalk constructed partly of dirt and partly of concrete or granolithic forming part of a way in the defendant city known as Prospect street, reached a point where the granolithic and dirt walks joined leaving the granolithic some four inches above the grade, when she tripped and fell, suffering personal injuries for which damages are sought. While the defendant by the first ruling asked for a directed verdict on all the evidence, the question of the plaintiff's due care has not been argued, and if the street where the accident happened was a public way which the city by R. L. c. 51, § 1, was bound to keep in repair so that it should be reasonably safe and convenient for travelers, there was under section 17, evidence for the jury of the defendant's negligence, and the fourth request could not have been given. Thomas v. Winthrop, 222 Mass. 456, 111 N. E. 173;Campbell v. Boston, 189 Mass. 7, 75 N. E. 96.

The defendant's main ground of defense is that the street was not a public way. The history of the title over which there was no dispute shows and the jury could find, that in 1870 or 1871 the trustees of the Worcester Lunatic Hospital began the development of a very large tract of unimproved land by dividing it into building lots which were placed on the market for sale. The plans which were prepared show the street in question to have been laid out between 1880 and 1882. The lots were sold and houses built, and the street was continuously used not only by the abutters and those dealing with them, but by the general public from 1882 to 1915, a period of 33 years prior to the accident. If a distinction is made between the use of the street by the abutters and the general public, the evidence amply warranted a finding that for at least 20 years before the present action accrued the use of the street by travelers was indistinguishable from the use of public ways in the vicinity with which the street connected. It does not appear that such use ever was interrupted by the original owner of the entire parcel, or by any of the subsequent owners of lots. The continuous use, however, by the public, even if with the implied assent of the abutters and their predecessor or predecessors in title, is evidence of the exercise of adverse rights. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542, 544, 95 N. E. 938, and cases there cited; Aikens v. New York, New Haven & Hartford Railroad, 188 Mass. 547, 549, 74 N. E. 929. But this is not all the evidence on the question. It is settled that admissions of the city or town by making repairs or using the way for municipal improvements is evidence of its existence as a highway. Reed v. Mayo, 220 Mass. 565, 567, 108 N. E. 366;Barron v. Watertown, 211 Mass. 46, 49, 97 N. E. 622. The laying of water pipes, the construction of a sewer, the installation and maintenance of a tungsten light in the street, and the construction of ‘a granolithic sidewalk with granite curbing and cobble gutter on the...